The First Hall of the Civil Court, presided over by Mr Justice Lino Farrugia Sacco in the case “John Peter Stanton vs Schembri and Sons Ltd” on December 16, 2013, held, among other things, that an employer was obliged to provide a safe place of work, as well as a safe system of work which eliminated risk of injury. Measures should be adopted to reduce or remove the danger.

The facts in this case were as follows.

John Peter Stanton was permanently injured at work on April 11, 2001, while operating a machine. He was employed by Schembri and Sons Ltd.

As a result of the injury, he lost the middle finger of his right hand, and suffered psychological damage. He said that the machine was defective and that the incident would not have happened if it was used according to specifications.

Faced with this situation, Stanton proceeded by filing legal proceedings for damages against his employer. He requested the court to declare his employer fully responsible for the incident of April 11, 2001, to liquidate the damages according to law and to condemn it pay him damages, with interest. In reply, the company denied responsibility.

It resulted that the company would change the mould of the machine approximately four times a week even though it was not intended for this type of use. The constant changing of the mould had the effect of eroding the thread of the nuts and bolts and of exposing a machine operator to the risk of injury.

In addition, Stanton had not been properly instructed on the safe use of the machine. At the time of the incident, Stanton was ordered to assist in the change of the mould on the machine. It so happened that the top part of the machine fell down, crushing Stanton’s finger.

Safe system of work: An employer was obliged to provide for the safety of his employees at the place of work. The workplace should be free of danger up to as reasonably possible. An employee should not be exposed to unnecessary risk at work. The court said that Stanton’s legal action was based on Civil Law provisions as well as upon occupational legislation. Reference was made to article 6(1) of chapter 424 which provides:

“(1) It shall be the duty of an employer to ensure the health and safety at all times of all persons who may be affected by the work being carried out for such employer:

• Provided that where, in pursuance of the foregoing, an employer enlists competent external services or persons, the employer shall not be discharged from such incumbent duties arising out of this act and out of regulations made under this act:

• Provided further that the workers’ obligations in the field of occupational health and safety shall not affect the principle of the responsibility of the employer.”

The provisions of chapter 424 and current regulations on safety and health formed part of an employee’s conditions of employment. According to case-law, an employer was legally obliged to provide a safe working place: re: Paul Grech v C. Bugeja dated October 9, 2006. There were four elements which rendered a place of work to be unsafe:

a. that the defendant’s operations involved a risk of injury which was reasonably forseeable;

b. that there were reasonably practicable means of obviating such risk;

c. that the plaintiff’s injury was caused by the risk in question;

d. that the failure of the defendant to eliminate the risk showed a want of reasonable care for the plaintiff’s safety.

An employee had to have safe tools, proper machinery and training. An employer should not give certain work unless its employee was duly instructed. The fact that certain practice had been followed for some time did not render such practice to be safe.

In Michael Whincup’s Modern Employment Law, it was stated:

“1. The employer must ensure that the employee knows the dangers;

2. The employer must ensure that the employee knows the precautions to be taken against these dangers;

3. The employer must ensure that the precautions are available;

4. The employer must ensure that the employee knows these precautions are available.”

An employer was obliged to train employees, provide supervision and a safe working system. The fact that an employee had been carrying out a certain task in a particular way did not eliminate risk of injury. An employer had to provide a working environment that was free of danger and take the necessary precautions

In Bugeja v Montanaro Gauci, on May 14, 2004, the Court of Appeal held that the entire place of work had to be free of danger: re J. Portelli v G. Leone Ganado on behalf of Enemalta Corporation dated December 15, 2005, where it was held that not only should a place of work be safe but the employees should know how to use the machines safely.

In the English case Wilson & Clyde Coal Co. Ltd v English, the House of Lords 1937 Lord Maughaw observed: “In the case of employments involving risk… it was held that there was a duty on the employer to take reasonable care, and to use reasonable skill, first to provide and maintain proper machinery, plant, appliances and works; secondly, to select proper skilled persons to manage and superintend the business; and thirdly, to provide a proper system of working.”

In John Sultana v Francis Spiteri et noe dated May 28, 1979, the Commercial Court explained that an employer had the duty to provide a safe place of work and safe tools. Goddand L. J. writes “not merely to warn against unusual dangers known to them but also to make the place of employment, as safe as the exercise of reasonable care would permit.

“The duty is owed to each individual servant individually.”

The court noted that, according to case-law, an employer was obliged to provide conditions of employment which guarantee the safety of employees at work. An employer had to take into account a number of factors in order to provide a safe working environment: the atmosphere at work, the difficulties to find workers, the long hours, the pressure of work and lack of assistance by other fellow colleagues, re: Schembri v Caruana noe dated (PA) January 12, 1983.

An employer was duty bound to provide supervision at work, to ensure that the place of work is free of all danger. In Grech v Ellul (PA), dated June 27, 1996, it was held that: “It is the duty of every employer to take all reasonable care for his employee’s safety in all circumstances at their place of work.”

As to the meaning of the words “reasonably practicable”, reference was made to the decision of criminal Court of Appeal on January 11, 2007, in Police v Angelus Bartolo where it was held that it“seems to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that if it be shown that there is a gross disproportion between them – the risk being insignificant in relations to the sacrifice – the defendants discharge the onus on them.

“The onus of proving that it is not reasonably practical to provide a safety measure is on the person whom the duty is imposed.” (Walter Wilson & Son v Summer-field – 1956-1 W.L.R 1429)

An employer should adopt all measures to protect its employees. In the book Employers Liability at Common Law (7th Edition, Butterworths p.129), John H. Munkman writes:

“1. It may be that the employer has done nothing at all to carry out his obligation.

2. In the second place, the employer may have been informed of a defect or danger and doing nothing to remedy it.

3. Thirdly, the employer knowing of a defect on his plant or premises, or of a danger in the course of the work may have taken inadequate measures to eliminate and reduce the risk.

4. Fourthly, though the employer does not know that anything is wrong, it may be that he ought to know – that is, he could have found out by reasonable care.”

A work place was unsafe:

1. If an employer carried out work where there was a risk of injury which could have been reasonably foreseen in advance;

2. Normal means/measures existed to eliminate the risk;

3. An employee was injured as a result of such danger;

4. The failure of an employer to remove such danger was an indication that he had not provided reasonable care for the safety of his employees.

It was clear that an employer was obliged to provide a safe place of work, as well as a safe system of work which eliminated risk of injury. Measures should be adopted to reduce or remove the danger. An employer should provide safety garments; ensure that employees knew how to use the machines and not allow employees to work without safety protection.

An employer was obliged to train employees, provide supervision and a safe working system. The fact that an employee had been carrying out a certain task in a particular way did not eliminate risk of injury.

An employer had to provide a working environment that was free of danger and take the necessary precautions. Employees should not take unnecessary risks. They had to wear the protective clothing, operate the machines safely and not expose themselves to excessive risk. They should also inform employees of any danger. Employees had to follow instructions. They should not work in a hurry in a way which would expose themselves or their colleagues to injury.

Loss of earnings: Article 1045 (1) of the Civil Code provides:

“(1) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused.”

Multiplier: At the time of the incident, Stanton was 47 years old. The court said that it had to consider the chances and changes of life, and the possibility that a victim would not work to retiring age. The court in this respect had a margin of discretion and felt, that in the circumstances, a multiplier of 13 would be appropriate.

Salary: As regards his annual income, this was increased slightly to €12,894 from €10,920 in light of possible wage increases for the next 13 years.

Disability: The grade of incapacity was not strictly medical but also took into account the effect on the victim’s earnings. The purpose of payment was to place the victim in a position as though he had not been injured, in line with the principle restitutio in integrum (PA) Borg pro et Muscat dated January 9, 1973. The court had wide discretion to quantify the percentage of disability. The injury could be psychological.

The court had to consider the effect on the earnings of the victim. In the case of multiple injuries, the court could give one aggregate percentage to include both injuries. By application of the formula (A+B (1-A/100), Stanton’s total permanent disability was deemed to be 82 per cent.

Lump sum deduction: The court felt that it should give an eight per cent lump sum deduction. In view of the above, it liquidated the lucrum cessans (loss of future earnings) to amount to €126, 459 and the damnum emergens (material damages) to amount to €18,216, the total compensation, added to €144,675 with interest due from the date of the liquidation of the damages, re: Maria Lourdes Brincat v Guiseppe Brincat dated March 17, 2010.

For these reasons, on December 16, 2013, the First Hall of the Civil Court gave judgment by declaring the company Schembri and Sons Ltd to be fully responsible for the incident of April 11, 2001, and condemned it to pay Stanton €144,675 compensation with interest until the date of payment.

Dr Karl Grech Orr is a partner at Ganado Advocates.